Terms and Conditions: Platinum Support

Terms and Conditions: Platinum Support

Effective Date: November 1, 2012

These Terms and Conditions (“Terms and Conditions”) are entered into by and between Advanced Solutions, Inc., a Kentucky corporation (“Advanced Solutions”) and you, a purchaser of an Eligible Product as defined in Paragraph 2 (“You” or “Your”), and are made effective as of the date of Your purchase of the license or licenses for Platinum Support Service (the “Purchase Date”). These Terms and Conditions govern Advanced Solutions’s Platinum Support Service (“Platinum Support Service”). By using Platinum Support Service, You acknowledge and agree that You have read, understand, and agree to be bound by these Terms and Conditions. To the extent that You purchase multiple licenses for Platinum Support Service, You agree that Your use of Platinum Support Service as to one license shall constitute acceptance of these Terms and Conditions as to all of Your licenses for Platinum Support Service.

Advanced Solutions may, in its sole and absolute discretion, change or modify these Terms and Conditions at any time. Such changes or modifications shall become effective immediately upon publication on Advanced Solutions’s website. Your use of the Platinum Support Service after such change or modification has been published shall constitute Your acceptance of these Terms and Conditions as last revised. In addition, Advanced Solutions may occasionally notify You of changes or modifications to these Terms and Conditions by email. It is therefore very important that You provide Advanced Solutions valid contact information and that You keep that contact information current. Advanced Solutions assumes no liability or responsibility for Your failure to receive any notification if such failure results from incomplete, unavailable, or inaccurate contact information.

Platinum Support Service; Term of License. Platinum Support Service refers to services provided by Advanced Solutions to You for Eligible Products as defined in Paragraph 2, including installation support; standalone and network, licensing support; troubleshooting errors or a failure of an Eligible Product to function as designed; configuration of video, printer or plotter drivers, and system variables; and evaluation of performance issues. In addition, a subscription or license to Platinum Support Service shall entitle You to a total of five (5) hours of either product customization (“Product Customization”) or design assistance (“Design Assistance”) services or a combination of both. Product Customization includes services to You from Advanced Solutions in customizing the user interface of an Eligible Product to the extent such Eligible Product’s user interface can be customized, provided, however, that Product Customization shall not include, and Advanced Solutions shall not be required to provide, any scripting or API programming or the development of any content or best practices for You. Design Assistance includes support services to You from Advanced Solutions in creating designs, models, and drawings, provided, however, that Design Assistance shall not include the development of content or best practices for You. Platinum Support Service is available by telephone and e-mail, is only available in English, and is only available to customers who are located in North America. A license for Platinum Support Service shall be valid for one (1) year from the Purchase Date. Platinum Support Service is provided to You, the purchaser of the Eligible Product as defined in Paragraph 2, and not Your employees, officers, licensees, or agents individually. You are only entitled to a total of five (5) hours of Product Customization or Design Assistance services, or a combination of both services, in conjunction with Your license or licenses for Platinum Support Service, irrespective of the total number of Platinum Support Service licenses You purchase.

Eligible Product; Payment of Fee; Service Issues. Platinum Support Service is offered for a fee in connection with the most current version of, or the three (3) immediately preceding versions of, any software for which Advanced Solutions offers Platinum Support Service, as of the date of a Support Request as defined in Section 3.1, whether such software constitutes a single program or part of a bundled package, suite, or series, (an “Eligible Product”). In order to receive Platinum Support Service, You must purchase a license for Platinum Support Service from Advanced Solutions covering an Eligible Product. Advanced Solutions will transmit to You a quote for Platinum Support Service (the “Platinum Support Service Quote”) detailing any applicable license fee and any additional information or terms governing Your license for Platinum Support Service. You agree to pay the license fee as set by Advanced Solutions before obtaining any Platinum Support Services. Pursuant to these Terms and Conditions, Advanced Solutions will use commercially reasonable efforts in an attempt to address any problem, issue, defect, malfunction, or other condition that causes, or may cause, an interruption of the operation of, or an impairment of, the performance of an Eligible Product (a “Service Issue”); however, Advanced Solutions does not guarantee that any individual Service Issue can be corrected or resolved. A Service Issue shall include (a) any software defect existing on multiple computers or devices simultaneously, where those computers utilize the same operating system and the same version of an Eligible Product (a “Software Defect”), and (b) any installation, licensing, or configuration issue which prevents the Eligible Product from installing, launching, operating, or otherwise functioning as designed (an “Operating Defect”). Advanced Solutions, in its reasonable discretion, will determine what constitutes a Service Issue and whether a Software Defect or Operating Defect exists.

Support Requests; Resolutions; Limitations of Service.

3.1 Submission of a Support Request. In order to receive Platinum Support Service, You may call or e-mail Advanced Solutions’s technical support team and request support related to a Service Issue (a “Support Request”). In the Support Request, You must include sufficient information to identify the Service Issue so that Advanced Solutions is able to determine the nature of the Service Issue and identify a potential resolution for the Service Issue. It is Your sole responsibility to implement and maintain measures to ensure that Your data is backed-up and to ensure that any and all confidential, protected, or sensitive information is secure before submitting a Support Request or otherwise seeking Platinum Support Service.

3.2 Delivery of Support. Advanced Solutions will make commercially reasonable efforts to provide a resolution for each Service Issue reported in a Support Request, but does not guarantee that any particular Service Issue can or will be resolved. You must cooperate to the extent necessary to allow Advanced Solutions to diagnose and provide a resolution for any Service Issue identified in Your Support Request. Advanced Solutions reserves the right to reject any Support Request that Advanced Solutions reasonably believes does not include a valid Service Issue.

3.3 Response Time. Advanced Solutions will make commercially reasonable efforts to respond to any Support Request within two business hours. A response may take the form of an initial communication from Advanced Solutions regarding an Issue, including an acknowledgment of Advanced Solutions’s receipt of a Support Request from You, or a substantive Resolution as defined in Section 3.4. However, Advanced Solutions does not guarantee any response will be provided within any specific time period. For purposes of these Terms and Conditions, business hours are Monday through Friday, between 8:00 AM and 5:00 PM Eastern Standard Time, excluding all federal holidays.

3.4 Resolution of Support Request. Upon diagnosis of a Service Issue pursuant to a Support Request, Advanced Solutions will attempt to provide a resolution addressing and resolving the identified Service Issue (a “Resolution”). A Resolution may include delivery of (a) a fix or patch which, when installed, restores the Eligible Product to substantial conformance with the Eligible Product’s original specifications; (b) a technique or method that alleviates or reduces the adverse effects of a Service Issue on the operation of the Eligible Product, but may not entirely restore the Eligible Product to substantial conformance with the Eligible Product’s original specifications, or (c) information that helps alleviate the adverse effects of a Service Issue on the operation of the Eligible Product. Advanced Solutions will determine, in its reasonable discretion, if a Service Issue has been resolved. In the event that Advanced Solutions cannot provide a Resolution to a Service Issue, Advanced Solutions will escalate the Service Issue to product support for the manufacturer of the Eligible Product. A Resolution to a Support Request by Advanced Solutions may not be possible in certain circumstances, including, but not limited to, where a Service Issue includes a Software Defect that only the manufacturer of the Eligible Product can correct or resolve. In the event that a Resolution is not possible despite Advanced Solutions’s commercially reasonable efforts to identify and provide a Resolution, a determination that no solution to the Service Issue will be delivered and You shall not be entitled to any refund or credit for the purchase price of the Eligible Product or for fees paid to obtain a license for Platinum Support Service. In the event that a Resolution of a Support Request results in the loss or alteration of any file, data, or program, Advanced Solutions shall not be responsible for such loss or alteration, and You are solely responsible for any and all restoration or reconstruction of those files, data, or programs.

3.5 Limitations on Your Use of Platinum Support Service. Platinum Support Service is provided solely for Your internal use to resolve Service Issues related to the installation of and access to Eligible Products. All communications and documents shared between You and Advanced Solutions are considered confidential (the “Confidential Materials”) and You agree not to disclose those Confidential Materials to any other individual, entity, or the general public. In addition, You agree not to transfer Your right to receive, or provide support to any third party using, Advanced Solutions’s Platinum Support Service without first obtaining Advanced Solutions’s written consent. Any disclosure of Confidential Materials or transfer or provision of support to third parties in violation of this provision is grounds for immediate termination of Your right to receive Platinum Support Service without any refund or credit due to You whatsoever. To the extent that a court of competent jurisdiction determines the prior covenant represents liquidated damages, both parties agree that the forfeiture of fees paid by You to obtain a license for Platinum Support Service is a reasonable estimate of any damages contemplated by Your breach of Section 3.5. In addition, You agree that any disclosure of Confidential Materials would cause irreparable harm to Advanced Solutions, entitling Advanced Solutions to any and all equitable relief available, including a permanent injunction, to prevent future disclosures of Confidential Materials by You. You agree to take reasonable precautions necessary to prevent the disclosure of Confidential Materials, as well as to prevent unauthorized use of Your Platinum Support Service by any third party. This section shall survive the termination or expiration of Your license to Platinum Support Service.

3.6 Exclusions to Your Platinum Support Service. Advanced Solutions will not provide Platinum Support Service where the Service Issue arises out of or from (a) issues that could be resolved by upgrading an Eligible Product to the most current version; (b) the use or modification of an Eligible Product in a manner for which the Eligible Product is not intended to be used or modified; (c) the use of third party products or technologies and their effects on or interactions with an Eligible Product; (d) damage to the device on which the Eligible Product is initially provided or to the device or computer on which an Eligible Product is installed; (e) use of a computer, operating system, or subsystem, such as a graphics card, that is incompatible with the Eligible Product; (f) Your failure to meet the minimum specifications prescribed for use with the Eligible Product; (g) operation of the computer or device on which the Eligible Product is installed in environmental conditions outside those prescribed by the manufacturer of that computer or device; (h) use of the Eligible Product with a version of the operating system software other than that specified by the manufacturer of the Eligible Product; and (i) issues relating to Internet, email, file management, network configuration, content creation, content customization, multimedia project planning/design, resource management, budgeting, training, onsite diagnosis, or other similar issues.

3.7 Support Service for Enhancements of Eligible Product. You may submit a Support Request for the inclusion of new features, enhancements, or functionality to Eligible Products, provided that Advanced Solutions shall be under no obligation to provide a Response to, or provide a Resolution for, that Support Request.

Product Customization/Design Assistance. Advanced Solutions shall have title to and ownership of, and all other rights with respect to the software, systems design, and any documentation arising out of performance through its Product Customization and/or Design Assistance services. In performance through its Product Customization and/or Design Assistance Services, certain custom modifications may be made by Advanced Solutions to the Eligible Product (“Custom Modifications”). Advanced Solutions shall retain title to and ownership of, and all other rights with respect to such Custom Modifications. With respect to all such software, system design information, documentation, and Custom Modifications delivered to or disclosed to You pursuant to Advanced Solutions’ performance through its Product Customization and/or Design Assistance services, Advanced Solutions hereby grants to You a nonexclusive, nonsublicensable, nontransferable, royalty-free limited license to use such software, system design information, documentation, and Custom Modifications. Advanced Solutions and You acknowledge that performance through its Product Customization and/or Design Assistance services may result in the development of new concepts, software, methods, techniques, processes, adaptations, and ideas, in addition to Advanced Solutions’ prior technology, which may be incorporated in Advanced Solutions’ performance. You agree that ownership and title of the same shall belong exclusively to Advanced Solutions without regard to the origin thereof. In the event You instruct Advanced Solutions to use materials owned by third parties, including, but not limited to, software which is encrypted or which you have contractually agreed not to modify, and You fail to properly secure or otherwise arrange for any necessary licenses or rights from that third party, You hereby agree to indemnify Advanced Solutions for any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party arising out of Your failure to obtain release or permission with respect to such materials.

Representations and Warranties. You and Advanced Solutions respectively represent and warrant to each other that each is fully authorized and empowered to agree to these Terms and Conditions and that this agreement and the performance of each party’s respective obligations under that agreement will not violate any other agreement between either You or Advanced Solutions and any other person, firm, or organization, or any law or government regulation. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF PLATINUM SUPPORT SERVICE SHALL BE AT YOUR OWN RISK AND THAT THIS SERVICE IS PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT ALLOWED BY LAW, ADVANCED SOLUTIONS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ADVANCED SOLUTIONS MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND CONCERNING ANY PLATINUM SUPPORT SERVICE. SPECIFICALLY, ADVANCED SOLUTIONS DOES NOT WARRANT THAT: (A) PLATINUM SUPPORT SERVICE WILL ENSURE THAT THE OPERATION OF ELIGIBLE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED; (B) ERRORS, DEFECTS OR SIMILAR FLAWS IN ELIGIBLE PRODUCTS WILL BE CORRECTED BY ADVANCED SOLUTIONS; (C) ADVANCED SOLUTIONS WILL RESOLVE ANY SERVICE REQUEST; OR (D) THAT ANY RESOLUTION PROPOSED BY ADVANCED SOLUTIONS IN RELATION TO A SERVICE REQUEST WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF YOUR LICENSE TO PLATINUM SUPPORT SERVICE.

Limitation of Liability. IN NO EVENT WILL ADVANCED SOLUTIONS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM THE LOSS OF USE OF ELIGIBLE PRODUCTS OR LOSS OF FILES, DATA, OR SOFTWARE HOWEVER CAUSED OR ARISING, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER ADVANCED SOLUTIONS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADVANCED SOLUTIONS’S TOTAL AGGREGATE LIABILITY ARISING FROM, OR IN RELATION TO, PLATINUM SUPPORT SERVICE PROVIDED HEREUNDER EXCEED THE AMOUNT PAID BY YOU FOR YOUR CURRENT LICENSE TO PLATINUM SUPPORT SERVICE. YOU AGREE AND ACKNOWLEDGE THAT THIS LIMITATION ON LIABILITY REFLECTS THIS ALLOCATION OF RISK AND THAT THE LIMITATION ON LIABILITY SET FORTH IN THIS SECTION IS AN ESSENTIAL ELEMENT OF THE ARRANGEMENT BETWEEN THE PARTIES. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF YOUR LICENSE TO PLATINUM SUPPORT SERVICE.

Miscellaneous Provisions.

7.1 Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the federal law of the United States and the state law of Kentucky, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Jefferson County, Kentucky, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue in the state and federal courts of Jefferson County, Kentucky.

7.2 Waiver of Trial By Jury. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS.

7.3 Titles and Headings. The titles and headings of these Terms and Conditions are for Your convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.

7.4 Independent Covenants; Severability. Each covenant and agreement in these Terms and Conditions shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision, or any portion of a provision, of these Terms and Conditions to be illegal, invalid, or otherwise unenforceable, the remaining provisions, or portions of provisions, of these Terms and Conditions shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

7.5 Entire Agreement; Merger; Conflicting Terms. These Terms and Conditions, and any documents they refer to, including the Platinum Support Service Quote, constitute the entire agreement between the parties concerning Platinum Support Service and supersede any prior or contemporaneous agreements, discussions or understandings between the parties, whether written or oral. To the extent that these Terms and Conditions or any other document conflicts with the Platinum Support Service Quote, the terms of the Platinum Support Service Quote shall govern and control.

7.6 Amendment. Except as otherwise stated in these Terms and Conditions, these Terms and Conditions cannot be amended without the prior written consent of both parties signed by authorized representatives of both parties.

7.7 Assignment; Third Party Beneficiaries. You may not assign any right or license, or delegate any duty, under these Terms and Conditions without first obtaining Advanced Solutions’s written consent. Advanced Solutions may assign or sub-contract any of its rights or obligations hereunder. Nothing in these Terms and Conditions shall be deemed to confer any rights or benefits to any third party.

7.8 Waiver. Waiver of any single breach or default will not constitute waiver of any other right under these Terms and Conditions or any subsequent breach or default.

7.9 Force Majeure. Advanced Solutions will not be deemed in breach of these Terms and Conditions if Advanced Solutions is unable to provide a Resolution to a Service Issue or services under these Terms and Conditions by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness, or incapacity of an employee, agent, or officer of Advanced Solutions, or any local, state, federal, national or international law, order, or regulation, or any other event beyond Advanced Solutions’s control.

7.10 Privacy. You consent to Advanced Solutions maintaining and using any personal information collected from You in accordance with Advanced Solutions’s current Privacy Policy, including, but not limited to, Advanced Solutions providing data and/or information to any manufacturer of an Eligible Product about any Support Request submitted by You.

7.11 United States Export Controls. Platinum Support Service are subject to export laws, restrictions, regulations, and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). You shall not use the Platinum Support Service to collect, store, or transmit any technical information or data that is controlled under U.S. Export Laws. You shall not export or re-export, or allow the export or re-export of, any Platinum Support Service in violation of any U.S. Export Laws. No Platinum Support Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using the Platinum Support Service, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You obtain Platinum Support Service from other countries or jurisdictions in violation of these Terms and Conditions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not obtain any Platinum Support Service. The obligations under this section shall survive any termination or expiration of Your subscription or license to Platinum Support Service.

7.12 Attorneys Fees. The prevailing party in any dispute that is resolved by arbitration or litigation arising from, or relating to, these Terms and Conditions shall be entitled to collect from the other party all of its reasonable costs and attorneys’ fees incurred.

7.13 Authority to Bind Corporate Entity. Your employee, officer, or agent who is submitting a Support Request to Advanced Solutions is agreeing to these Terms and Conditions on Your behalf. You agree that Your employee, officer, or agent has the ability to bind You.